The Competition Bureau's Immunity Program: Practice Tips for the Marker and Proffer Stages

In general, a marker should be sought as quickly as possible after a potential Competition Act offence is discovered. This typically requires a very quick review of potential violations of the Competition Act. Obtaining markers is a race and clients can face serious liability, including criminal conviction, fines and imprisonment, if a delay leads to a loss of marker position.

Applicants have 30 calendar days (subject to extension) to provide their proffer after a marker is obtained and can withdraw a marker if an offence has not been committed. As such, a conservative strategy is to obtain a marker even if it is thought an offence only may have been committed to allow counsel further time for review.

A clear description should be provided of the potential criminal conduct (that is, under what sections of the Competition Act the marker is sought). In some cases, it may be necessary to seek a marker under multiple sections of the Competition Act (for example, under both the conspiracy and bid-rigging sections).

A precise description of the time period of the potential offence(s) should also be provided (that is, how long the potential offence(s) occurred).

A precise description of the product (and any sub-products) should be provided.

In some cases, it is prudent to begin a marker request with a broader description of the geographic market, product(s) and potential offences. This can serve several purposes, including helping to preserve anonymity during the initial internal review stage and in the event that more potential products or offences are involved than thought on an initial review. For example, in a case that may involve price-fixing and bid-rigging, it may make sense to request a marker under both sections 45 (conspiracy) and 47 (bid-rigging) of the Competition Act.

Ensure that the Bureau agrees that an immunity marker is being requested and agrees to the date and time of the request.

Counsel should also make it clear on whose behalf the marker is being sought (for example, the company, the company and its current directors, officers and employees, etc.).

Accurate notes should be kept of the marker request, time of request, and any remarks or follow-up questions from the Bureau. The Bureau will sometimes request further information to issue a marker.

It may be necessary to revise or broaden a marker. In general, an applicant's marker needs to cover all potential Competition Act offences committed by the applicant, relevant products and the time frame of the offences. Failing to adequately secure a sufficiently accurate marker can lead to subsequent applicants obtaining immunity to the prejudice of the first immunity applicant (that is, a leniency applicant obtaining "immunity plus"). For example, revising a marker may be necessary if:

Markers lapse 30 calendar days after being granted where an applicant fails to perfect its proffer and extensions are the applicant's responsibility. As such, counsel should carefully record the expiry date of a client's marker and seek an extension (or extensions) from the Bureau if necessary.

Clients should be advised about the scope of their disclosure and other obligations under the Immunity Program. Key requirements for an applicant include terminating participation in the illegal activity, not disclosing its marker application or subsequent immunity to third parties without the consent of the Bureau or Director of Public Prosecutions (DPP) disclosing all conduct that may constitute an offence under the Competition Act in which it may have been involved and providing full, complete, frank and truthful disclosure of all relevant non-privileged information, evidence and records in their possession. For more information, see sections 13 to 19 of the Immunity Bulletin.

It is often prudent to provide a client with an outline of its obligations under the Immunity Program and copies of the Bureau's Immunity Bulletin and Immunity FAQs.

Clients should periodically be reminded of their ongoing obligations under the Program. Two key requirements that commonly arise in this regard are the importance of not disclosing a marker or proffer with other parties to an offence, to conduct an ongoing internal review for relevant documents and information, and provide the information to the Bureau.

It should be made clear with the Bureau at the outset that the applicant's proffer is being provided on a hypothetical and without-prejudice basis.

The Bureau has developed a paperless immunity process. As such, non-privileged written communications should be avoided. For example, proffer information should be provided orally to the Bureau and, if the Bureau requires viewing documents, it should be allowed to review them and take notes (for example, at the applicant's firm's offices).

If the Bureau requires interviews with a representative or representatives of the applicant, appropriate precautions should be taken. These typically include an immunity agreement between the applicant and PPSC to protect against the use of interview information against an applicant and its personnel, negotiation of who will be interviewed, the scope of Bureau questions (for example, what is relevant) and whether the interview will be recorded by audio or video. The primary purposes of an interview at the proffer stage are to allow the Bureau to confirm the credibility of a potential witness and to allow it to gather additional information and evidence.

The client should be advised not to destroy any potentially relevant records, for example, hardcopy documents, emails or older computer records or hard drives.

Counsel should keep a detailed record of information provided to the Bureau, outstanding Bureau questions and information to be provided.

In terms of follow-up internal review by the applicant, it can be useful for counsel to draft an information request that combines outstanding Bureau questions as well as areas that the client may search.

Counsel should take care to record its applicant's marker expiry date and, if necessary, seek extensions from the Bureau to complete an applicant's proffer.

Once the Bureau confirms that an applicant's proffer is complete, counsel should record this information, discuss any further information sought by the Bureau, the timing of the Bureau's immunity recommendation to the PPSC and immunity agreement.